Page 132 - Courting the Media Contemporary Perspectives on Media and Law

―Your Words Against Mine‖: States of Exception… 123

read as those conditions that generally are valid for the production of
knowledge in a legal process:

The amount of knowledge which we can justify from evidence
directly available to us can never be large. The overwhelming proportion
of our factual beliefs continue therefore to be held at second hand through
trusting others, and in the great majority of cases our trust is placed in the
authority of comparatively few people of widely acknowledged standing
[Polanyi, p. 208].

Trusting other people and authorities and being able to make one or others
trustworthy or untrustworthy are thus crucial aspects of the process of
knowledge production in legal contexts. As Polanyi argues, the evidence can
not to a great extent be directly accessible for a human being. Like Habermas
has shown, the organization of the court aims to consider only the evidence
that can be treated as legitimate, i.e. not subjective. In an analysis of two
hypothetical cases of murder as self defense, Mark Kelman argues:

Questions of how we claim to know the things we know and whose
claims to knowledge are treated as authoritative are inescapable in
reaching legal judgments [Kelman, p. 798].

In legal processes, the sifting of evidence is an advanced form of
epistemological discourse where questions concerning the relevance of
knowledge, its creation and authorization are central. In the hypothetical
murder cases discussed by Kelman, this kind of epistemological discourse
becomes even more stringent when actions like murder in self defense are
based on the victim‘s account of the threatening character of the situation. This
leads the court into complicated discussions about probability besides the basic
epistemological problems.
What can be counted as evidence is historically connected to
understandings of the individual. With reference to Foucault‘s The Order of
Discourse, Simon Schaffer in his study of the shifting roles of evidence in the
history of science argues that scholasticism derives the authority of statements
from that of their personalized authors, while scientists today hold that matters
of fact are the most impersonal statements [Schaffer, p.327]. Historical studies
of numeric sciences and statistics show that until the early modern period, oral
testimonies counted as more important than any written documentation. Pieces
of evidence could only be regarded as such if they were supported by the oral
testimonies of observers. Oral witnessing counted as more valid than the